In the Matter of the Claim of Melody Wohlfeil, Respondent,v.Sharel Ventures, LLC, Respondent, Workers' Compensation Board, Appellant.

Brief

N.Y.August 29, 2018

13 EAST MOHAWK STREET | SUITE 200 BUFFALO, NEW YORK 14203 (716) 249-6900 PHONE (716) 249-6910 FAX BUFFALO ∙ ROCHESTER ∙ SYRACUSE ∙ NEW YORK CITY May 29, 2018 Hon John P. Asiello Clerk of the Court State of New York, Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Wohlfeil v Sharel Ventures, LLC APL-2018-00010 Dear Mr. Asiello: Please accept this letter as the submission of the respondent, Safety National Casualty Corporation on behalf of Sharel (improperly spelled Sharell) Ventures, LLC, dba NY McDonald's Oper WC Trust (hereafter “Carrier”), pursuant to Rule 500.11. Carrier submits this brief in support of Appellant’s (hereafter the Board)’s application for an appeal in this matter. Said respondent brief is submitted in support of all the arguments and assertions made in the Board’s submission. The Carrier agrees with the Board’s position that the Court retains jurisdiction and requests reversal of the judgment that is being appealed therefrom. The Appellate Division erred in failing to sustain the Board’s initial determination. The ALJ is in the best position to support the credibility of the medical witnesses and the ALJ’s decision was supported by substantial medical and vocational evidence in the record. The medical evidence and XaUtjuM JCoAÿch, XXP ATTORNEYS AT LAW Page 2 testimony on the record supported a finding that claimant sustained a permanent, partial disability with a 75% loss of wage earning capacity. As such, we are asking that the Appellate Division judgment be reversed and the ALJ’s initial determination be reinstated. STATUTORY FRAMEWORK For sake of brevity, the Carrier will adopt and support the statutory framework outlined in the appeal by the Board. Said deponent has reviewed that statutory framework and agrees with it in its entirety. FACTS AND PROCEDURAL HISTORY The claimant/appellant, Melody Wohfiel, (hereafter the “claimant”) filed a worker’s compensation claim which has been established for injuries to the back, rib, right hip, and consequential right knee as a result of an accident on October 16, 2007. The claimant was a service food worker, who was injured when she slipped and fell on a substance on the floor while working. (R.4). Claimant has a Regents diploma from New York State with no college degree. (R.52-53). At the time of the accident, Claimant worked as a crew member/cashier at McDonald’s in Farmington, NY (R.53). After high school, Claimant worked at Woolworth making Christmas hats and stockings in 1984 (R.62). She then went on to work at Fairview Veterinary Hospital from 1984-1990 where she worked as a veterinarian assistant/head receptionist. (R.62). Her job duties consisted of answering phones, making appointments, doing inventory, taking care of the animals, consoling families with sick pets and even administering medication Page 3 to the animals. (R.63.). Claimant also worked as the pharmacy tech there and took care of all accounting of medications and labeling. (R.64-65). She also performed computer programming for Fairview Veterinary Hospital. She learned how to use their new computer system at the main hospital and brought her skills back to Fairview and taught the rest of the staff. (R.65). Claimant started working part-time at the hospital while also working for Dr. Soltiz and Freeman doing four-handed dentistry from 1990-1995 (R.67- 68). Between 1996 and 1998 she held a part time job at Burgundy Basin doing banquet service and between 1998 and 2005 she stayed home to raise her son. (R. 68-70). After she returned to the workforce, Claimant worked at an interior landscaping business called Botanical where she traveled to different commercial offices and took care of plants. (R.55, 70). Prior to working at McDonald’s, she worked as a crew member at Dunkin Donuts (R.54). After leaving Dunkin Donuts, she then worked at the subject McDonald’s starting in 2005. Claimant currently uses a tablet and her phone for surfing the internet. She has email but denies using it often. She is capable of driving for short periods of time. (R.70-71). Claimant also suffered from unrelated medical conditions of depression and angina (heart condition) (R.60). After the hearing held on 11/10/14, the depositions of Dr. Clifford Ameduri and Dr. Guy Corkhill were directed with memoranda of law to be filed by 1/15/15. (R.35-36). Page 4 Claimant underwent an Independent Medical Examination performed by Dr. Corkhill on 12/14/14. Dr. Corkhill opined that claimant had a moderate to marked partial disability and had reached maximum medical improvement if she is not offered further treatment or refuses further treatment. Dr. Corkhill further opined that claimant is a medical impairment class 4 based on Table 11.2 for surgically treated spine conditions. The doctor also made the following findings based on his examination: • “From Table S11.4 for abnormal imaging findings the claimant has a score of 16. • From Table S11.4 for EMG abnormalities the claimant has a score of 6. • From Table S11.4(a) for muscle involvement grade 3/5 equals a score of 6. • From Table S11.4(b) for sensory involvement compromised sensation equals a score of 4. • From Table S11.4 reflex changes present but diminished reflexes equals a score of 4. • From Table S11.4 for tension compression signs the claimant has a score of 4 for positive straight leg raise. • From Table S.11.6 for L3 sensory loss she has a score of 0.” Dr. Corkhill then opined a total score of 40 and from Table S11.7(b) a core of 40 equals a severity ranking of “G”. (R.76). Based on the subjective complaints that claimant reported to Dr. Corkhill, he noted that claimant is able to “sit for 30 minutes, stand for 20 minutes, and uses a cart at the grocery store for shopping.” Claimant also reported to Dr. Corkhill that her “right leg becomes paralyzed while she is driving and has to use the left leg for the foot controls.” (R.76). Page 5 The testimony of Dr. Clifford Ameduri, claimant’s treating doctor, was conducted on 01/05/2015 (R.85). Dr. Ameduri testified that he has treated the claimant for post- operative back pain. He last examined the claimant on 8/14/14. (R. 87-88). Subjectively, Dr. Ameduri opined that claimant was still having pain post-surgery. He then opined that claimant could only perform work at less than sedentary work level however admittedly made that opinion without the benefit of a functional capacity evaluation. (R.88). Dr. Ameduri admitted he only saw the claimant on two occasions, 7/2/14 and 8/14/14 (R.91). Any statement referencing a “total disablement” was given with a caution that the doctor does not use the “old guidelines” anymore. (R.88-89). Dr. Ameduri could not say with a reasonable degree of medical certainly that claimant’s bladder problems were related to the subject work injury and could not opine when the bladder problems started. (R.92). Regarding claimant’s work restrictions, Dr. Ameduri opined that claimant could occasionally lift, carry, pull and push up to 10 lbs. and that she could sit, stand and walk on occasion as long as she did not sit or stand for more than 30 minutes without changing positions. He also testified that claimant could perform simple grasping and fine manipulation. (R. 93-95). Dr. Ameduri did not actually speak with the claimant about her work restrictions. (R.98). He could not recall if claimant required the use of any assistive devices such as a cane or walker. He believed she was independent regarding her self-care. Claimant did need help getting onto his exam table however he admitted that at the time Page 6 he did not have an electric exam table and it was a very high exam table. Finally, he testified that claimant did not have any bowel incontinence or gait deviation. (R.99-100). Dr. Ameduri found claimant to have a Class 4 Condition of lumbar spine with a severity ranking of “F”. (R.49). The deposition of carrier’s consulting doctor, Dr. Guy Corkhill, was then conducted on 01/15/2015. (R.102). Dr. Corkhill examined the claimant on two occasions: 08/16/13 and 12/11/2014. (R.103). The doctor reiterated his report where it stated that if claimant did not seek further treatment, that she had reached maximum medical improvement and referred to his permanency finding of Severity Ranking “G”. (R.104). In a Reserved Decision dated 02/09/2015, the Honorable Judge David Lawlor held that “claimant has a permanent partial disability causally related to the injury of this file with a 75% loss of wage earning capacity.” (R.11). Claimant then appealed the Reserved Decision by filing an RB-89 dated 2/12/15 with presumably supporting papers (not included in the Record on Appeal) (R80-81). The Board Panel then issued a Decision dated 10/29/2015 affirming Judge Lawlor’s Decision with all three Judges concurring. (R.4-9). Claimant/Appellant’s Appeal to the Third Department then ensued. The Appellate Division, Third Department, then reversed the Board’s Decision, Matter of Wohlfiel v Sharel Ventures, LLC, 155 A.D.3d 1264 (3d Dep’t 2017). The Appellate Division specifically held that the claimant sustained permanent total disability to her back rather than from a partial disability. The concurring justices found that Page 7 claimant’s ability to perform some type of sedentary work were contrary to the consistent medical proof presented. The concurring justices held that the finding of the permanent, partial disability and 75% loss of wage earning capacity was not supported by substantial evidence in the record. The concurring justices supported claimant’s argument that the record warrants the finding of a permanent, total disability. Given the severity in permanency of claimant’s back condition, the concurring justices found that both Dr. Ameduri and Dr. Corkhill concluded that claimant was unable to engage in gainful employment. They found the operative standard to be “gainful” employment, not some undefined type of limited sedentary work. As such, they concluded that the Board erred in failing to find that claimant sustained a permanent, total disability. The dissenting justices found that their review was limited to whether the Workers’ Compensation Board’s determination was supported by substantial evidence. They specifically held that because the evidence credited by the Board supports its finding that the claimant had a permanent, partial disability and a 75% loss of wage earning capacity, they found that the Board’s determination should not be disturbed. Based on the two dissenting justices on the question of law, the Board appealed to the Court of Appeal as an appeal of right under CPLR § 5601(a) and this brief is submitted in response and in support of said appeal. Respondent does not object to review under Rule 500.11. Page 8 ARGUMENT The Carrier supports the arguments set forth by the Board in their appeal, in addition to the following arguments. THE BOARD PANEL DECISION SHOULD BE AFFIRMED AS IT WAS PROPERLY DETERMINED THAT CLAIMANT HAS A PERMANENT PARIAL DISABILITY WITH A 75% LOSS OF WAGE EARNING CAPACITY. The credible evidence in the record supports a finding that claimant sustained a permanent partial disability based on the permanency rankings opined by Dr. Ameduri and Dr. Corkhill. As discussed below, the ALJ (hereafter “WCLJ”) took the doctors’ opinions into consideration as well as claimant’s vocational factors when opining a 75% loss of wage earning capacity. Pursuant to WCL §15(3)(w), a claimant’s loss of wage earning capacity “must be determined by a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant’s age, and any other relevant factors. For each claimant, the percentage representing the loss of wage earning capacity determines the maximum number of benefits weeks and percentage representing the ‘wage earning capacity’ is used to calculate the weekly rate (see Matter of Buffalo Auto Recovery Service, 2009 NY Wrk Comp 8070390 [November 12, 2009]; Matter of Longley Jones Management Corp., 2012 NY Wrk Comp 60704882.” (R.7). Page 9 A claimant’s loss of wage earning capacity is an evidentiary determination based on the medical impairment and functional ability. The WCLJ evaluates the medical evidence and then applies the vocational factors which have been developed through lay testimony. Any determination as to loss of wage earning capacity must be consistent with the provisions of the Workers' Compensation Law. Matter of Monroe County, 2014 NY Wrk Comp 4854018. There is a distinction between impairment and disability. Based on NYS case law, “impairment” is defined as a medical condition while a claimant's “disability” is a legal determination. Id. at 3. A determination as to loss of wage earning capacity requires development of the record as to the nature and degree of permanent impairment, work restrictions, age, education, language ability, and other relevant factors. Id. (see also Matter of NYC Department of Juvenile Justice, 2011 NY Wrk Comp 00749328). While the impairment rating may coincidentally be the same percentage as the ultimate finding of loss of wage earning capacity, the medical impairment rating is not to be used as a direct translation to loss of wage earning capacity. Matter of Patchogue- Medford School Dist., 2011 NY Wrk Comp 40803044. The 2012 Medical Impairment Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity “enumerate the criteria and factors used in determining the severity ranking for the medical impairment for a surgically treated and non-surgically treated spine condition and pelvis conditions, with ‘A’ being the least severe medical Page 10 impairment and ‘Z’ being the most severe medical impairment. The Board Panel has previously noted, that “[t]he severity ranking is generally predictive of the expected functional loss from the medical impairment. The 2012 Guidelines also permit consideration of an assessment of residual functional ability/loss’ of the claimant. The extent of impairment is measured by considering medical evidence of impairment and medical evidence of functional loss.” Matter of Maimonides Med. Ctr., 2014 NY Wrk Comp 4087719, at 2. “Once the appropriate severity ranking is determined, the Medical Impairment Severity Crosswalk (Table 18.1) is to be applied. Table 18.1 is intended to allow for some degree of comparison between rankings of different classes and chapters. The Medical Impairment Severity Crosswalk creates a range of 0-6, (0 representing no medical impairment, 1 representing 25% medical impairment, 2 representing 33.33% medical impairment, 3 representing 50% medical impairment, 4 representing 66.66% medical impairment, 5 representing 75% medical impairment, and 6 representing total medical impairment).” Matter of J Scaramella Trucking, 2014 NY Wrk Comp 4771958, at 4–5. The Board Panel in Matter of J Scaramella Trucking gives the following example: “pursuant to the Medical Impairment Severity Crosswalk table 18.1 for the lumbar spine, severity rankings of A-B, D would correspond to a mild, or 25% permanent impairment (severity class 1). Severity rankings E-F correspond to a mild to moderate, or 33.33% permanent impairment, under the Medical Impairment Severity Crosswalk (severity class Page 11 2). Similarly, severity ranking D-E correspond to a mild to moderate, or 33.33% permanent impairment…” Id. In the subject case, Dr. Ameduri (claimant’s treating doctor), properly followed the 2012 Medical Impairment Guidelines and opined that claimant fell under Table 11.2 class 5 with Severity Ranking “F”. Using the Severity Crosswalk discussed above, this translates to a 33 1/3% permanent medical impairment. Dr. Corkhill properly used the same guidelines and also opined that claimant fell under Table 11.2, Class 4 with a Severity Ranking “G”. Using the Severity Crosswalk discussed above, this translates into a 50% permanent medical impairment. In the subject case, the WCLJ took into consideration the medical impairment ratings opined by the doctors as well as claimant’s vocational factors. In the Reserved Decision, WCLJ Lawlor specifically outlined the severity rankings given by the doctors as well as claimant’s vocational factors. WCLJ noted that “claimant is now in her late forties with a high school education and labor market experience in veterinary assisting, dental assisting, office work, interior landscaping, child care and food service.” (R.11). Based on her versatility, experiences and evaluating her testimony, the WCLJ opined that claimant would qualify for some forms of light or sedentary work but her continuing pain condition would likely reduce her ability to prepare for or concentrate on sedentary work.” (R.11). In a recent Board Panel Decision, the Board affirmed the WCLJ decision that found an 85% LWEC for a claimant that was 58 years old at the time of the hearing and had Page 12 worked as a nursing aide for the past 18 years. Since the accident, claimant needs help dressing herself, must be driven by someone else, and cannot even cook in her own kitchen without sitting down every 10 minutes. There was no indication she could use any of her current work skills or trade school training to perform work. The claimant was found to have a permanent lumbar injury with a severity ranking of I and a permanent neck injury with a severity ranking of G. Given the claimant's age, multiple sites of injury, severity rankings, functional limitations and lack of transferable job skills, the WCLJ found an 85% LWEC which was confirmed by the Board Panel. Matter of Personal Touch, 2016 NY Wrk 846013, at 3. In the subject case, claimant is capable of doing some light cleaning, cooking, limited driving, using the internet, can speak, write and read English well, has transferable skills from prior work experiences such as veterinary assisting, dental assisting, office work, interior landscaping, child care and food service. Additionally, Ms. Wohlfiel’s impairment rankings were found to be “F” and G”. To be consistent with the decision in the Matter of Personal Touch, Ms. Wohlfiel’s LWEC should not exceed the claimant’s LWEC in Matter of Personal Touch as Ms. Wohlfiel’s impairment rankings were less severe and her vocational factors are stronger. Claimant’s AWW is $124.19. She only worked part time since having children in 1995. If claimant worked a part-time sedentary job within her restrictions for approx. 15 Page 13 hours a week at the minimum wage of $8.75 (the minimum wage at the time of the appeal to the Board Panel), she would exceed her AWW. As discussed above, applying the Severity Crosswalk, applicable case law, 2012 Medical Impairment Guidelines and reasoning outlined in the WCLJ’s Reserved Decision, it is clear that the WCLJ took into consideration both claimant’s medical impairment and vocational factors when finding a 75% loss of wage earning capacity. The Carrier agrees with the dissenting opinions of the dissenting justices. Specifically, they found that Dr. Ameduri found that claimant had functional capacity of “less than sedentary work.” In the dissenting opinion, they noted that pursuant to the New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) that claimant could occasionally sit, stand, walk and lift objects weighing up to 10 pounds. Within the past year, the Appellate Division has concluded that these findings were consistent with a classification of a permanent partial disability. The dissenting justices went on to list Matter of Burgos v Citywide Cent. Ins. Program, 148 A.D.3d 1493, 1494-1495, 51 N.Y.S. 3d, 214 (2017). The Carrier agrees with the dissenting justices in that the findings opined by Dr. Ameduri and Dr. Corkhill supported a finding that claimant sustained a permanent, partial disability and more specifically, that the ALJ was in the best position to make a determination of the credibility of these doctors and that evidence is supported by the record and therefore should not be disturbed. Page 14 The Carrier agrees that “the Court accords great deference to the Board’s resolution of issues concerning conflicting medical evidence and witness credibility.” Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139 A.D.3d, 1304, 1305, 32 N.Y.S.3d 378 (2016). The dissenting justices specifically recognized the deference that is given to the ALJ at the hearing that is present for the testimony of the various witnesses. The concurring justices, in the majority opinion, failed to recognize this deference. Since the ALJ did not recognize and accept Dr. Ameduri’s testimony of claimant being totally disabled as credible, deference should be given to that opinion as the justices at the appellate level did not actually hear Dr. Ameduri testify. The ALJ has the ability to accept or reject portions of an expert’s testimony based on their determination of its credibility. Id at 1305. The Carrier further agrees with the dissenting justices in that the claimant’s appeal of the 75% loss of wage earning capacity lacks merit. The Appellate Division failed to factor in all the factors that should be considered in determining permanency, namely, the nature and degree of the work-related permanent impairment and claimant’s functional capacities as well as vocational issues, including claimant’s education, training, skills, age and proficiency in the English language. Matter of Burgos v Citywide Cent. Ins. Program, 148 A.D.3d, 1495, 51 N.Y.S.3d 214. The claimant was in her late 40’s with a high school education and had labor market experience in veterinarian assisting, dental assisting, office work, interior landscaping, child care and food service. Based on her versatility, her Page 15 experiences and evaluating her testimony, the ALJ properly opined that the claimant would qualify for some form of lighter sedentary work, therefore supporting a finding of permanent, partial disability. CONCLUSION For all the reasons listed above, as well as the supporting arguments outlined in the Board’s appeal, we respectfully request a determination that the claimant was permanently, partially disabled with a 75% loss of wage earning capacity. We respectfully request the Appellate Division judgment be reversed and the initial Board’s determination be reinstated. Sincerely, Melissa Habberfield, Escf Habberfield Kaszycki, LLP Attorneys for Sharel Ventures, LLC 13 E. Mohawk Street, Ste. 200 Buffalo, New York 14203 (716) 249-6900 To: Laura Etlinger, Esq. Melvin Bressler, Esq. CORPORATE DISCLOSURE STATEMENT Safety National Casualty Corporation is a wholly-owned subsidiary of Tokio Marine Holdings Group. Dated: May 25, 2018 Melissa Habberfield, Esq. Habberfield Kaszycki, LLP Attorneys for Sharel Ventures, LLC 13 E. Mohawk Street, Ste. 200 Buffalo, New York 14203 (716) 249-6900 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 N.Y.C.R.R. § 500.11(j), that the foregoing brief was prepared on a computer using Microsoft Word. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 3,479 words. af_ J Melissa Habberfield, Esq. Dated: May 25, 2018 Habberfield Kaszycki, LLP Attorneys for Sharel Ventures, LLC 13 E. Mohawk Street, Ste. 200 Buffalo, New York 14203 (716) 249-6900